NSW Government accused of judicial interference

Thanks to our virtual assistant @grathom we were alerted of the following fully sick media article whereby the NSW Government is accused of JUDICIAL interference!

NSW Government accused of judicial interference

The New South Wales Opposition and the Greens have accused the state’s Finance Minister of improper interference in the judicial process.

Labor spokesman Michael Daley says a decision to adjourn WorkCover cases in the state’s Industrial Relations Commission came after a directive from Minister Greg Pearce.

It is understood the commission’s president Roger Boland was furious at the directive, calling it “absurd”.

Mr Daley says it is unprecedented.

“Political interference in the judicial process. I thought we got rid of that sort of behaviour hundreds of years ago,” he said.

“But not any longer. It is back under Barry O’Farrell.

“That is a bit like the Attorney-General asking Commissioner Scipione to stop prosecutions against criminals in the middle of a trial. It’s unacceptable.”

Greens MP David Shoebridge agrees it is an extraordinary move.

“This is the Government directly defying the Parliament and making retrospective its watering down of occupational health and safety laws,” he said.

Mr Pearce was not available for an interview, but issued a statement defending his actions.

“WorkCover will soon obtain an advice on the applicable laws to some occupational health and safety prosecutions,” he said. “There are cases where WorkCover is seeking an adjournment while it gets this advice. It would be the normal course of cases until this is received.”

Judicial interference is a negatively connoted term used to describe the actions of courts or judicial officers in matters that are interpreted by some as beyond their constitutionally established role.

WorkCover halts prosecutions to clarify new law

WorkCover prosecutors are adjourning all occupational health and safety cases listed for hearing while it reviews whether they fall under a law introduced last month.

The Work Health and Safety Act 2011 replaced the Occupational Health and Safety Act 2000.

The NSW opposition and Greens say the review breaches the intent of the new law because it is not retrospective and should not apply to cases that began before last month.

The new law makes it harder for the prosecution to prove its case. The government has described the change as a reversal of the onus of proof.

The former chairman of WorkCover NSW, Greg McCarthy, has warned the government scheme could be in deficit by as much as $5 billion when the annual accounts are produced in June.

The shadow treasurer, Michael Daley, said WorkCover was the regulator of workplace safety and its job was to protect workers and prosecute bosses responsible for workplace injuries and deaths.

‘”One of the first acts of the O’Farrell government was to undermine workplace safety and tip the balance in favour of big businesses,” he said.

“All WorkCover prosecutions are in limbo.”

Mr Daley accused the Finance and Services Minister, Greg Pearce, of political interference.

But Mr Pearce denied he gave a ministerial directive to WorkCover to adjourn any particular cases before the Industrial Court of NSW.

Greens MP David Shoebridge said the government was defying the Parliament by making the new safety laws retrospective in practice. He said WorkCover prosecutors should be free to do their job without any political interference.

He said there would be far fewer successful prosecutions than there were under the previous law, which would impact on work safety.

“Tougher occupational health and safety standards were set in law until the end of 2011,” he said. “WorkCover is ignoring this and delivering for the Coalition’s friends in industry.

“If an employer breached a safety standard they should face the full consequences, not be given a get-out-of-jail-free card by the O’Farrell government.

“The minister must immediately rescind this directive from WorkCover and allow prosecutors to do their job free from political interference.”

One Sydney barrister, who did not wish to be named, said he was involved in three sentencing matters on Monday and all of them were adjourned because WorkCover was conducting an internal review of cases brought under the Occupational Work and Safety Act 2000.

“Nobody seems to know exactly what is going on,” he said.

“It has a bit of a smell about it, suggesting they are having a secretive review with the idea of withdrawing all the prosecutions under the 2000 act.

“If they go down that path, then they are going to usurp the intent of the legislation. We are hearing they are reviewing the cases and testing them against what the current act requires.”

Mr Pearce yesterday said the Crown Solicitor had been asked to seek the advice of senior counsel on current prosecutions before the courts.

WorkCover had sought adjournments in a number of cases, pending advice from the Crown Solicitor.

“This situation is not without precedent,” Mr Pearce said, referring to a High Court case.

In 2009, the Kirk Group challenged the way the Industrial Court of New South Wales interpreted the Occupational Health and Safety Act.

Mr Pearce said that, in 2010, a judgment upheld the appeal in damning terms.

The High Court was particularly critical of the legislation and its application at that point in time especially the reverse onus of proof and the deemed directors’ liabilities provisions.

“Importantly, back in 2010, WorkCover, as a result of the Kirk decision and on the advice of senior counsel and with the knowledge of the then minister Daley reviewed all prosecutions before the courts to determine whether any amendments to the charges were required.

“At the time, amendment applications were made in a significant proportion of cases which were the subject of that review,” he said.

WorkCover has “more than 100″ OHS cases delayed

The NSW Government has outlined a number of possible WorkCover reforms as flagged by the scheme’s outgoing chair. Also in this article, the Government has fielded questions on the adjournment of dozens of OHS prosecutions.

NSW Finance Minister Greg Pearce had provided very little detail on the nature of the WorkCover reforms that he promised would be “fast-tracked” following the resignation of chair Greg McCarthy and CEO Lisa Hunt early this month.

“[McCarthy] suggested that WorkCover implement a proper scheme-monitoring capability which would involve: identifying poor performing industry sectors and what drives their risk, identifying what is driving their performance… and establishing claims review capability,” Pearce said.

“Mr McCarthy also suggested that WorkCover consider implementing a commutation window to allow the introduction of legislation that refocuses the scheme towards rehabilitation rather than compensation.”

Other proposed reforms included a review of the operating guidelines for claims agents, and ensuring the “financial drivers for performance” were transparent.

“He makes numerous suggestions looking at organisational change, a review of benefits and stronger enforceable obligations on the delivery of rehabilitation by employers and on injured workers in order to receive benefits.”

Pearce stressed that the proposals were a list of McCarthy’s “own thoughts” and did not constitute current Government policy.

OHS adjournment sought during sentencing

Pearce was also peppered with questions on the adjournment of OHS prosecutions before the Industrial Court.

Shadow Mental Health Minister Adam Searle asked if the Government had asked WorkCover to “suspend work safety prosecutions”.

Pearce said WorkCover had sought adjournments “in a number of cases pending advice being received by the Crown Solicitor” on the new work health and safety laws.

He said the Government had not directed the regulator to adjourn any cases, and confirmed that WorkCover had sought an adjournment of a matter during a sentencing hearing in a case involving Visy Pulp and Paper.

Pearce last year announced that OHS prosecutions would eventually be moved from the Industrial Court to the District Court.

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